GENERAL TERMS SOLVIMON B.V.
1.1 In these general terms the following definitions are used:
Agreement means any (online) agreement and/or order form, including Appendices to it, between Solvimon and Customer to which these General Terms apply;
Appendix means an appendix to an Agreement;
Customer means a party that uses Services provided by Solvimon;
General Terms means these general terms and conditions of Solvimon and any updated version of thereof;
Intellectual Property Rights means all brands, logos, trademarks, trade names, service marks, (internet) domain names, models and designs, patents, copyrights (including all rights relating to software) and moral rights, rights relating to databases, documentation, scripts, knowhow, and other rights, as well as all other industrial and intellectual rights, in any case independent from whether or not they have been registered and with the inclusion of registration applications as well as all equivalent rights or means of protection (e.g. trade secrets) leading to a similar result anywhere in the world;
Results means the output delivered as a result of a Service, such as invoices, reports, advices, screenshots, print-outs, analyses, designs, documentation, training materials and other results of Services;
Service means the service as delivered by Solvimon to a Customer by way of remotely making and keeping Software available to Customer via the internet or any other data network, without Customer being provided with a physical carrier with this Software, including for the avoidance of doubt making available any demo and/or sandbox environments to a Customer;
Software means all software – both in source code, object code and otherwise – that is related to the Solvimon Billing Platform; and
Solvimon SOLVIMON B.V., a company with limited liability (besloten vennootschap met beperkte aansprakelijkheid), with its statutory seat in Utrecht, its registered offices at Daalsesingel 51, 3511 SW, Utrecht, the Netherlands and registered with the commercial register of the Dutch Chamber of Commerce (Handelsregister van de Kamer van Koophandel) under number 86385879.
2. Applicability General Terms
2.1 These General Terms apply to any and all Services delivered by Solvimon and to any and all (online) offers and agreements (including Agreements), of whatever nature and under whatever name, entered into between Solvimon and Customer in connection with the Services provided by Solvimon. The applicability of any of the Customer’s purchase or other terms is explicitly excluded.
2.2 Customer will be asked to create an account in order to use the Services. In order to create an account to use the Services, Customer must (i) be legally able to represent the company or business contracting the Services and (ii) review and accept these General Terms on its behalf.
2.3 These General Terms can only be departed from or be supplemented if agreed by Parties in writing.
2.4 Solvimon has the right to unilaterally adapt these General Terms at any time. If Solvimon issues a new version of its General Terms, it shall notify Customer in writing, make a copy available and publish it on its website. The adapted General Terms shall take effect thirty (30) days after publication or on a later date specified in the publication. If Customer does not consent to the adaptation, Customer is entitled to terminate the Agreement by serving written notice of termination by registered e-mail as of the date the adaptation takes effect. After the date the adaptation has taken effect, Customer is considered to have accepted the adaptation. The new version of these General Terms shall apply to the Agreements already entered into between Parties and to Agreements that are entered into between the Parties after the date of such new version of these General Terms.
3. Third party products and services
3.1 If and insofar as Solvimon makes products or services of third parties available to Customer or grants access to these products or services, the terms of the third parties in question apply to these products or services in the relationship between Solvimon and Customer and replace the provisions in these General Terms that depart from those third party terms, provided that Customer has been informed by Solvimon about the applicability of the (licensing or sales) terms of those third parties and Customer has been given a reasonable opportunity to take note of those terms. Contrary to the previous sentence, Customer cannot invoke a failure on the part of Solvimon to meet the aforementioned obligation if Customer is a party as referred to in article 6:235 paragraph 1 or paragraph 3 of the Netherlands Civil Code.
3.2 If and insofar as the terms of third parties in the relationship between Customer and Solvimon referred to above prove to be inapplicable or are declared inapplicable for any reason whatsoever, these general terms apply in full.
4. Offer and Agreement
4.1 Unless otherwise indicated in writing with reference to the relevant offer or expression, all offers and quotations of Solvimon are without obligation.
4.2 Customer guarantees the accuracy and completeness of the data, information, designs and specifications provided by or on behalf of him to Solvimon on which the offer (and Agreement based thereon) is based.
4.3 An Agreement between Parties becomes effective on having been signed by both Parties. Acceptance of an offer does not create an Agreement, unless explicitly stated otherwise in the offer.
4.4 An offer or quotation issued by Solvimon is valid for a period of 14 days, unless the offer or quotation states otherwise.
5. Price and payment
5.1 All prices are exclusive of turnover tax (VAT) and other levies imposed by the authorities. Unless explicitly agreed otherwise in writing in an Agreement, all prices quoted by Solvimon are in euros and Customer must pay in euros.
5.2 If any withholding or deduction is required under applicable law, Customer shall, when making payment of the prices to which the withholding or deduction relates, pay to Solvimon such additional amount as to ensure that Solvimon receives the same total amount of the fees that it would have received if no such withholding or deduction had been required.
5.3 Invoices shall be paid by Customer in accordance with the payment terms stated on the invoice. In the absence of a statement, Customer shall pay an invoice within thirty (30) days of the invoice date. Payment terms shall be regarded as strict dates (fatale termijnen). Customer is not entitled to set off a payment.
5.4 Customer agrees to pay all fees in accordance with the applicable prices and rates, which Solvimon may adapt from time to time, unless specifically agreed otherwise in the applicable Agreement. In the event of any adaptation of prices and/or rates, Solvimon will take commercially reasonable steps to notify Customer of such adaptations taking effect, which may be satisfied by notifying you via an in-application notice on the online environment through which the Services are made available to Customer or otherwise.
5.5 Solvimon may index its rates on an annual basis, per 1 January, in accordance with the CBS (Statistics Netherlands) price index for business and ICT Services, IT Services, 2015 = 100. Customer’s right to terminate an Agreement does not apply for this indexation.
5.6 If Customer fails to pay the amounts due or does not pay these on time, Customer shall, without any demand or notice of default being required, be in default and shall owe statutory (commercial) interest on the outstanding amount. If Customer should fail to pay the sum due even after a reminder or notice of default, Solvimon can pass on the claim for collection and Customer is obliged to pay, within reason and in addition to the total sum due at that time, all judicial and extrajudicial costs, including all costs charged by external experts – all of which is without prejudice to any of Solvimon’s statutory and contractual rights (including Solvimon’s right to suspension of services).
5.7 Any complaint regarding Solvimon’s invoices must be communicated to Solvimon by email within ten (10) Business Days of their receipt. Otherwise, they shall be deemed accepted without reservation. A claim shall in no case justify a delay or suspension of payment of the undisputed part of the invoice. If the invoice, at the request of the Customer, is issued to a third party, the Customer and that third party are jointly and severally liable for the payment and the execution of other liabilities arising from this Agreement.
6. Duration of an Agreement
6.1 If and insofar as the agreement between parties is a continuing performance contract, the agreement is entered into for the term agreed on by parties. A term of one year applies if a specific term has not been agreed on.
6.2 Unless otherwise agreed in writing, upon expiry of its term, the duration of an Agreement is tacitly renewed for the duration of the term originally agreed upon, unless either party should terminate ("opzeggen") this Agreement by serving written notice of termination in accordance with the possibilities described in the relevant Agreement. If no reference is made to any notice period for termination, this notice period will be three (3) months before the end of the relevant term.
7. Termination of an Agreement
7.1 Unless performance of the remaining obligations under an Agreement is permanently impossible, an Agreement may only be terminated for breach (“ontbinden”) if either party has imputably failed to meet any of its fundamental obligations and the other party has sent that party a written notice of default, stating the details of the breach, and has granted the other party a reasonable term to remedy the failure and this party – after this term has lapsed – still imputably fails to meet its obligations. Payment obligations of Customer and any obligations Customer has with respect to third parties engaged by Customer are always considered fundamental obligations under an Agreement.
7.2 Any amounts that are invoiced by Solvimon before termination (“ontbinding”) remain fully due and are immediately payable at the moment of termination, unless Customer proves that Solvimon continues to be in default with respect to a fundamental part of the relevant Agreement.
7.3 Either party may terminate (“opzeggen”) an agreement in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a suspension of payments, whether or not provisional, a petition for bankruptcy is filed against the other party or the company of the other party is liquidated or dissolved other than for restructuring purposes or for a merger of companies. Solvimon may also terminate (“opzeggen”) an Agreement, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of Customer’s company. Solvimon is never obliged to repay any sum of money already received or pay any sum of money in compensation because of termination as referred to in this paragraph. If Customer is irrevocably bankrupted, its right to use the Software, websites and the like made available to Customer ends, as does its right to access and/or use Solvimon’s Services, without Solvimon being required to cancel these rights.
7.4 An Agreement that has been entered into for a definite period of time or for the duration of a project cannot be terminated early by serving notice of termination (“opzeggen”) – in so far as required contrary to the provisions of article 7:408 paragraph 1 Netherlands Civil Code.
7.5 Either party may terminate, by serving notice of termination (“opzeggen”), an Agreement entered into for an indefinite period of time if this Agreement in its nature and content does not end by discharge. Termination must be in writing, taking effect at the end of a month and with due observance of a notice period of at least three (3) calendar months.
7.6 Solvimon will never be obliged to compensate any damages caused by termination by giving notice (“opzegging”).
8.1 Solvimon provides the Service on Customer’s instructions. Customer may solely use the Service for its own organisation or company and only insofar as required for the use intended by Solvimon. Customer may not allow third parties to make use of the Service.
8.2 Solvimon may adjust the content or scope of the Service. If such adjustments are substantive and result in a change in Customer’s current procedures, Solvimon informs Customer about this as soon as possible and the costs of this adjustment are at Customer’s expense. In this case Customer may serve notice of termination of the agreement (opzeggen), which termination takes effect on the date on which the adjustment takes effect, unless the adjustment is related to amendments in relevant legislation or other instructions issued by public authorities, or the adjustment is at Solvimon’s expense.
8.3 Solvimon may continue to provide the Service using a new or modified version of the underlying Software. Solvimon is not obliged to maintain, modify or add particular features or functionalities of the Services specifically for Customer.
8.4 Solvimon is never obliged to provide Customer with a physical carrier or download of the underlying software, unless this has been specifically agreed in the Agreement.
8.5 Unless agreed otherwise in the Agreement, Customer itself is responsible for designing, configuring, parameterising and tuning the Service, converting and uploading possible data and, where required, for modifying the hardware and user environment used.
9.1 Solvimon will provide the Services “as is”, unless explicitly agreed otherwise in an Agreement.
9.2 Solvimon does not guarantee that the Service is free of errors and functions without any interruptions. Solvimon does not guarantee that errors in the Service that has not been developed by Solvimon itself are repaired.
9.3 Solvimon makes every effort to repair the errors in the underlying Software within a reasonable period of time if and insofar as underlying Software is concerned that has been developed by Solvimon itself and Customer has provided Solvimon with a detailed, written description of the relevant errors. In a particular case, Solvimon may postpone repairing errors until a new version of the underlying Software is put into service.
9.4 Solvimon is entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the Service.
9.5 Solvimon does not guarantee that the Service is timely adapted to any amendments in the relevant laws and regulations. Solvimon shall undertake to adapt the Services to amendments in the relevant laws and regulations on the basis of a best efforts obligation ("inspanningsverbintenis").
10. Commencement of the Service
10.1 The Service provided by Solvimon – and, where relevant, support – commences within a reasonable period of time after the Agreement has been entered into. Unless agreed on otherwise, the Service commences by Solvimon granting Customer access to the Service that is made available by Solvimon. Customer ensures that it has the facilities required to use the Service immediately after the Agreement has been entered into.
10.2 Solvimon is not obliged to follow Customer's instructions when performing the Services, more particularly not if these instructions change or add to the content or scope of the Services agreed on. If such instructions are followed, however, the activities performed are charged at Solvimon's applicable rates.
10.3 Solvimon is not responsible or liable for performance problems due to or caused by the online services of third parties or suppliers.
10.4 Customer always strictly complies with the agreed restrictions on the use of the Service, regardless of the nature or the content of these restrictions.
10.5 Solvimon may require that Customer should only start using the Service after it has received one or more codes needed for the use from Solvimon, from Solvimon's supplier or from the producer of the Service.
11.1 In the event Solvimon has reasonable suspicion that Customer does not use the Services in compliance with the applicable Agreement and/or these General Terms, Solvimon is entitled to have an independent external auditor audit Customer’s books and records, subject to Solvimon giving prior notice of at least one (1) month of its intention to perform such audit. Customer shall cooperate with any such audit and shall allow the auditors access to sites, access to the books and records and access to the relevant systems to investigate Customer’s compliance with this Agreement. Audits will be performed during business hours. Parties shall bear their own respective costs and expenses incurred as a result of any audit, unless the audit reveals that the Customer is not compliant with this Agreement, in which case the Customer shall bear all costs and expenses incurred by parties as a result of the audit.
12. Acceptance of the Service
12.1 If parties have not agreed on an acceptance test, Customer accepts the Service in the state that it is in when the Service has commenced ('as is, where is'), therefore, with all visible and invisible errors and defects. If this should be the case, the Service is deemed to have been accepted by Customer upon commencement of the Service or, if installation by Solvimon has been agreed on in writing, upon completion of the installation.
12.2 Acceptance of the Service in one of the ways referred to in this article results in Solvimon being discharged of its obligations in the context of making the software available and delivering it and, if installation of the software by Solvimon has also been agreed on, of its obligations in the context of installing it.
13.1 Solvimon may require that Customer should modify its system (hardware, web browser, software and the like) if this should be necessary for the proper functioning of a new version of the Service. Such
13.2 If the Service provided by Solvimon under the Agreement includes support services to users and/or administrators of the Service, Solvimon advises – online or by email – on the use and functioning of the Service specified in the Agreement. Customer is obliged to specify the requests for support as comprehensively and in as much detail as possible so that Solvimon can respond appropriately. Solvimon may set conditions with respect to the way in which support is requested and the qualifications and the number of persons eligible for support. Solvimon handles properly substantiated requests for support within a reasonable period of time and in compliance with its applicable procedures. Solvimon does not guarantee the correctness, completeness or timeliness of responses or of the support offered. Support services are performed on working days during Solvimon’s usual business hours.
13.3 If the Service provided by Solvimon under the Agreement includes standby services, Solvimon ensures that one or more staff members are available on the days and at the times specified in the Agreement. If standby services have been agreed on, Customer is entitled, in urgent cases, to contact the support of staff members on standby via specific (by Solvimon provided) emergency contact details (email address) if there are serious errors, serious malfunctions and other serious imperfections in the functioning of the Service. Solvimon does not guarantee that these are promptly repaired.
14. Execution and terms
14.1 All of Solvimon’s Services are provided on the basis of a best efforts obligation ("inspanningsverbintenis").
14.2 Solvimon will endeavour, within reason, to observe, as much as possible, the terms and/or dates, whether deadlines or not, referred to by Solvimon or agreed upon by parties. Any date agreed upon between parties is considered a target date and does not bind Solvimon. Merely exceeding one of the (delivery) terms or (delivery) dates referred to by Solvimon or agreed upon between parties does not result in Solvimon being in default ("verzuim"). Solvimon will never be in default for exceeding a deadline - not even, therefore, if parties have explicitly agreed upon a (delivery) deadline in writing - before Customer has served a written default notice granting Solvimon a reasonable period of time to remedy the default and Solvimon still imputably fails to perform its obligations after this period of time.
14.3 Parties are jointly responsible for ensuring the planning and possible departures from it and they will see to it that the planning and ensuring the planning is always an item on the agenda of their regular consultations.
14.4 If parties have agreed that the performance of the activities agreed upon under an Agreement is to take place in phases, Solvimon is entitled to postpone the start of activities that are part of a certain phase until Customer has approved the Results of the preceding phase in writing.
14.5 Without prejudice to the provisions above, Solvimon is not bound by any (delivery) date or (delivery) term, whether a deadline ("fatale termijn") or not, if parties have agreed upon a change in the content or scope of an Agreement (extra work, alteration of specifications, etc.) or a change in the way an Agreement is to be executed, or in the event Customer fails to meets its obligations arising from an Agreement, or fails to meet these in time or in full. If any extra work should be required while an Agreement is being executed, this can never be a reason for Customer to terminate this Agreement by giving notice of termination ("opzeggen") or to terminate it for breach ("ontbinden").
15. Maintenance, service levels and back-up
15.1 Arrangements concerning maintenance and/or service levels are always explicitly agreed upon in writing in a service level agreement.
15.2 Solvimon may temporarily put all or part of the Service out of service (i) to perform scheduled or unscheduled maintenance, modifications, or upgrades or other forms of service (b) due to hardware failures, power outages, or failures of third-party providers (c) to mitigate or prevent the effects of any threat or attack to the Services or any other network or systems on which the Services rely or (d) as required for legal or regulatory reasons.
15.3 Solvimon ensures that the period of time during which the Service is out of operation does not take longer than necessary and ensures, where possible, that the service takes place at times when the Service is usually used least intensively.
15.4 Solvimon will make a reasonable effort to notify Customer in advance of any scheduled Services’ unavailability.
15.5 Except as provided for in an Agreement, to the greatest extent permitted by applicable law, Solvimon is not in any way liable for any damages, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of unavailability of Services or the failure to provide notice of unavailability.
15.6 Customer is responsible for making backups, unless explicitly agreed otherwise in writing. Customer remains at all times responsible for checking that its data is properly and completely backed up.
15.7 Solvimon is never obliged to recover data that has been corrupted or lost.
16. Data exchange and Personal data
16.1 If personal data are to be processed under an Agreement, Solvimon and Customer will enter into a Data Processing Agreement to that end.
16.2 Solvimon does not make Customer's data, including personal data, available outside its own organization and the enterprises affiliated with Solvimon, unless Customer should instruct this or in so far as this should be necessary or required under these General Terms, under an Agreement or by law.
16.3 Customer guarantees the accuracy, quality, integrity, lawfulness, reliability and suitability of the data delivered by Customer. Customer sees to it that all relevant consent is obtained to make data available to Solvimon and for Solvimon to use the data in the context of the execution of an Agreement, which consent includes permission to collect, use, process, transfer and provide personal data.
17.1 Solvimon is only obliged to provide some form of security if and to the extent provided for in the Agreement. Solvimon is entitled to adjust the security measures from time to time if this is necessary as a result of changing circumstances.
17.2 Solvimon explicitly does not warrant that information security is effective under all circumstances and the Customer acknowledges this.
17.3 Solvimon may give Customer instructions about security features intended to prevent or to minimalize incidents, or the consequences of incidents, that may affect security. If Customer should fail to follow the instructions issued by Solvimon or by a relevant public authority, or should fail to follow these in time, Solvimon is not liable and Customer indemnifies Solvimon against any damage that may arise as a result.
17.4 Customer is responsible for adequately securing and maintaining adequate security of its systems and infrastructure, even if security by Solvimon is within the scope of the Agreement.
17.5 Customer, among other things, must have and maintain its own security policy and is responsible for conducting and maintaining a proper password policy and actively warning within its organization about phishing emails and similar activities to prevent security incidents.
17.6 Solvimon is not liable for any damage suffered or costs incurred as a result of the use or misuse that is made of access or identification codes or certificates or any other security means unless the misuse is the direct result of any intent or deliberate recklessness on the part of Solvimon's management.
17.7 Access or identification codes, certificates or other security devices provided by or on behalf of Solvimon to Customer are confidential and will be treated as such by Customer and will only be disclosed to authorized personnel from the Customer's own organization. Solvimon is entitled to change assigned access or identification codes and certificates. Customer is responsible for managing authorizations and providing and timely revoking access or identification codes.
17.8 If the security or testing thereof relates to software or infrastructure not provided to Customer by Solvimon under the Agreement, Customer warrants that all necessary licenses or approvals have been obtained to allow Solvimon to perform said services. Solvimon shall not be liable for any damages incurred in connection with the performance of such service. Customer indemnifies Solvimon against any legal claim of whatever nature in connection with the performance of these services.
17.9 Solvimon is always permitted to install technical and organizational provisions for the protection of equipment, data files, websites, software made available, or other works to which access is provided (directly or indirectly) to Customer, also in connection with an agreed upon limitation in the content or duration of the right to use these objects. Customer shall not remove (or cause to be removed) or circumvent (or cause to be circumvented) such technical provision(s).
17.10 The risk of loss, theft, embezzlement or damage to items, data (including user names, codes and passwords), documents, software or data files manufactured for, supplied to or used by the Customer in the context of the execution of the Agreement shall pass to the Customer at the time they are placed under the actual control of the Customer or an auxiliary person of the Customer.
18. Obligations of Customer
18.1 Customer will always render any assistance required - always promptly and in all reasonableness - and always provide Solvimon with the data or information that Solvimon requests. If Customer assigns its own staff and/or auxiliary persons to assist in the execution of an Agreement, these employees and auxiliary persons must have the required skills and experience.
18.2 Customer guarantees the correctness and completeness of the data, information, designs and specifications provided by Customer to Solvimon during the execution of an Agreement.
18.3 Customer performs its tasks and duties with appropriate quality, quantity, assignment of sufficient staff and sufficiently qualified staff and on time.
18.4 Customer itself is responsible for the correct interpretation and proper use (including compliance with laws and regulations) of Software and/or Services and/or Results. This includes the Customer's responsibility to check the Results of the Services for correctness and completeness. Customer indemnifies Solvimon for any and all claims arising from any incorrect and/or incomplete Results.
18.5 Customer bears the risk of selecting, using, applying and managing the hardware (including the settings), Software, websites, data files and other products and materials for or in its organization and the Services to be provided by Solvimon and the way in which the Results of the Services, Software and other products and Services are implemented. Customer is also responsible for the instructions given to the users and for the use made of all of this by the users.
18.6 Customer must always exercise the utmost care with respect to the proper installation, mounting and implementation and to the correct setting of the hardware, Software, websites, data files and other products and materials.
18.7 In the event Solvimon employees carry out activities at Customer's premises, Customer will see to it, free of charge, that these employees are provided, in all reasonableness, with the facilities they require, such as a workplace with computer, data and telecommunication facilities. The workplace and facilities must meet the statutory and other relevant requirements for working conditions. Customer indemnifies Solvimon against claims by third parties, including claims by Solvimon employees, who suffer damage in connection with the execution of the Agreement, which damage results from any act or omission of Customer or from unsafe situations in Customer's organization. Before the activities start, Customer informs Solvimon employees about the house rules and safety rules that Customer applies in its organization.
18.8 In the event computer, data and telecommunication facilities, including the internet, are used for the execution of an Agreement, Customer is responsible for the appropriate selection of means required for these facilities and for their timely and full availability, except for the facilities which are under Solvimon's direct use and management. Solvimon is never responsible for any damage or costs, including costs of delay for Solvimon, as a result of transmission errors, failures or non-availability of these facilities, unless Customer proves that this damage or these costs are caused by intent or wilful recklessness on the part of Solvimon's management.
18.9 Customer is responsible both for installing, setting up, parametrizing and tuning the software and auxiliary software required for its own hardware and, where required, modifying any other hardware used, other software or auxiliary software and for the operating environment and for realizing the interoperability wanted.
19. Intellectual property rights
19.1 All Intellectual Property Rights with respect to the Software, Services, products, services, software, websites, applications, data files, hardware, training materials, testing materials and other materials - such as but not restricted to analyses, designs, documentation, reports - made available to Customer remain exclusively vested in Solvimon, its licensors and/or suppliers. Customer is solely granted the rights of use laid down in these General Terms, in the Agreement and in the applicable mandatory legal provisions. A right of use granted to Customer is non-exclusive, non-transferable, non-pledgeable (niet-verpandbaar) and non-sublicensable.
19.2 Solvimon is permitted to take technical measures to protect the hardware, data files, websites, applications, Software made available, Software which Customer is granted access to (partially or in full) and the like in the context of an agreed upon restriction in the content or the duration of the right to use these objects. Customer may not remove or circumvent these technical measures or have these removed or circumvented.
19.3 Solvimon will try to resolve any claim filed by a third party against Customer, which claim is based on an alleged, direct infringement by Software, websites, applications, data files, hardware or other materials ("Materials") developed by Solvimon of any Intellectual Property Right which that third party can enforce in the European Economic Area. Solvimon is obliged to do so, provided that Customer uses these Materials unmodified and in accordance with the relevant Agreement and without combining these Materials with hardware or software, websites or other materials that have not been supplied or delivered by Solvimon or have not been recommended in the relevant Agreement. If Solvimon cannot resolve the claim by the third party under commercially reasonable conditions, Solvimon may (a) modify the object delivered to Customer or replace it by an operational equivalent, or, if this should prove impossible (b) terminate ("opzeggen") the relevant Agreement by giving notice of termination and refund the amount paid by Customer for the period following the termination of this Agreement.
19.4 Article 19.3 applies subject to the following conditions: (a) Customer informs Solvimon immediately in writing about any such claim or a possible claim, (b) Customer allows Solvimon to conduct its own defence, independently, and/or to settle the claim and (c) Customer provides Solvimon with correct and complete information and assistance to settle such claim and/or to defend itself against it. To that purpose Customer must grant Solvimon the required powers-of-attorney and provide Solvimon with any assistance it may require.
19.5 Article 19.3 does not apply if the alleged infringement is related to material made available by Customer to Solvimon for use, modification, processing or maintenance or modifications that Customer has made, or has had made, in the Materials without Solvimons written permission.
19.6 Customer is not entitled to remove or alter any reference to the confidential nature or notices of the relevant copyrights, trademarks, trade names or any other intellectual property from or in the Materials or have these removed or altered.
19.7 Customer guarantees that none of the hardware, software, material meant for websites and/or data files and/or other materials and/or designs made available to Solvimon for use, maintenance, modification, installation or integration purposes or for the performance of other activities pursuant to or in the context of an Agreement is incompatible with any third party rights.Customer indemnifies Solvimon against any claim by a third party which is based on an alleged infringement of any right of that third party by any of the means that have been made available or by the use, maintenance, modification, installation or integration of such means.
19.8 Solvimon is never obliged to carry out data conversion, unless this has been explicitly agreed upon with Customer.
20.1 Solvimon’s total liability due to an imputable failure in the performance of the Agreement, or arising from any other legal basis whatsoever, explicitly each and every failure to meet a guarantee or indemnification obligation agreed on with Customer, is at all times limited to compensation for direct damages up to a maximum of the amount of the invoice (excluding passthrough fees for third party services, excluding VAT, and including discount) paid by Customer to Solvimon. If the Agreement is a continuing performance contract with a term of six (6) months or longer, the amount of invoices paid by Customer shall be set at the total sum of the invoices (excluding passthrough fees for third party services, excluding VAT and including discount) paid for the six (6) months immediately preceding the moment when the event giving rise to the damage occurred. In no event does Solvimon's total cumulative liability, on any legal basis whatsoever, exceed EUR 50.000 and liability is in any event limited to the amount paid unconditionally by Solvimon’s insurer for the specific incident. A number of consecutive or related events is seen as one (1) event. In so far as claims arise from various legal relationships between parties which are based on one and the same or a related body of facts, these claims are not considered to constitute a cumulation of claims. In that event the stipulated price as referred to above is the Agreement that has the lowest price.
20.2 Solvimons total cumulative liability for any damage arising from death or bodily injury or arising from material damage to goods is limited to the amount of EUR 1,250,000.
20.3 Direct damage are exclusively understood to mean:
(a) reasonable costs incurred by Customer to have Solvimon's performance comply with an Agreement; however. These damages are not compensated, however, if Customer has terminated this Agreement for breach (“ontbinden”);
(b) reasonable costs incurred by Customer by establishing the cause and the extent of the damage, in so far as establishing this is related to the direct damage in the meaning of these General Terms;
(c) reasonable costs incurred by Customer to prevent or limit the damage, in so far as Customer demonstrates that these costs have led to a limitation of direct damages in the sense of this article 20.
20.4 Liability of Solvimon for indirect damage, consequential damage, loss of profit, loss of revenue, lost savings, diminished goodwill, loss due to incomplete or incorrect tax returns, damage due to business interruption, damage resulting from claims from customers, damage resulting from fines or claims from tax authorities such as tax incompliance, damage related to the use of goods, materials or software of third parties prescribed by Customer to Solvimon, damage related to the use of suppliers prescribed by Customer to Solvimon and all forms of damage other than those mentioned in article 20.1, 20.2 and 20.3, for whatever reason, is expressly excluded at all times. Solvimon’s liability for corruption, destruction or loss of data or documents is also excluded.
20.5 The exclusions and limitations of Solvimon's liability described articles 20.1 up to and including 20.4 are without any prejudice whatsoever to the other exclusions and limitations of Solvimon's liability described in these General Terms.
20.6 The exclusions and limitations referred to in articles 20.1 up to and including 20.4 cease to apply if and insofar as the damage is caused by intent or deliberate recklessness on the part of Solvimon's management.
20.7 Unless performance by Solvimon is permanently impossible, Solvimon is exclusively liable for an imputable failure in the performance of an Agreement if Customer promptly serves Solvimon with a written notice of default, granting Solvimon a reasonable period of time to remedy the breach, and Solvimon should still imputably fail to meet its obligations after that reasonable term has passed. The notice of default must describe Solvimon's failure as comprehensively and in as much detail as possible so that Solvimon has the opportunity to respond adequately.
20.8 The right to compensation of damages exclusively arises if Customer reports the damage to Solvimon in writing as soon as possible after the damage has occurred. Any claim for compensation of damages filed against Solvimon lapses by the mere expiry of a period of twenty four months following the inception of the claim unless Customer has instituted a legal action for damages prior to the expiry of this term.
20.9 Customer indemnifies Solvimon against any and all claims of third parties arising from product liability because of a defect in a product or system that Customer delivered to a third party and that consisted in part of hardware, software or other materials delivered by Solvimon, unless and insofar as Customer is able to prove that the loss was caused by the hardware, software or other materials referred to.
20.10 Both the provisions in this article 20 and all other restrictions and exclusions of liability referred to in these General Terms also apply for the persons and legal persons that Solvimon engages for the performance of an Agreement.
20.11 If Solvimon follows up on a complaint of Customer, this does not mean that Solvimon thereby accepts liability.
21. Notice and take down
21.1 Customer will at all times behave with care and not unlawfully toward third parties, in particular by respecting the intellectual property and other rights of third parties, respecting the privacy of third parties, not disseminating data in violation of the law, not gaining unauthorized access to systems, not disseminating viruses or other harmful programs or data, and refraining from criminal offenses and violation of any other legal obligation.
21.2 In order to prevent liability towards third parties or to limit the consequences thereof, Solvimon is always entitled to take measures with respect to an act or omission by or at the risk of Customer. Upon Solvimon's first written request, Customer will immediately remove data and/or information from the systems of Solvimon or its suppliers, failing which Solvimon is entitled, at its option, to remove the data and/or information itself or make access thereto impossible. Solvimon is further entitled to deny the Customer access to its systems immediately and without prior notice in case of violation or imminent violation of the provision of 21.1. The foregoing is without prejudice to any other measures or the exercise of other legal and contractual rights by Solvimon against Customer. In that case, Solvimon is also entitled to terminate (opzeggen) the Agreement with immediate effect, without being liable to the Customer for that reason.
21.3 Solvimon cannot be required to form an opinion about the merits of third party claims or of the defense against them by Customer, nor to be involved in any way in a dispute between a third party and Customer. Customer shall have to consult with the third party in question and inform Solvimon in writing and properly supported by documents.
22. Consequences of terminating an Agreement and exit procedure
22.1 Upon termination (“beëindiging”) of an Agreement the right ends to use the Software, websites, applications, data files, training testing and other materials such as, but not limited to, analyses, designs, documentation, report, and the like, that were made available and the right ends that Customer has to access and/or to use the Services provided by Solvimon under the Agreement, without Solvimon having to terminate these rights explicitly.
23.1 Each party shall ensure that all information received from the other party which is known or should reasonably be known to be of a confidential nature shall remain secret. This prohibition shall not apply if and insofar as disclosure of the data in question to a third party is necessary pursuant to a court order, a statutory regulation, on the basis of a legally issued order by a government authority or for the proper execution of the Agreement. The party receiving confidential data shall use it only for the purpose for which it was provided. Data shall in any case be considered confidential if it is designated as such by one of the Parties.
23.2 Customer acknowledges that the Software and/or the Services provided by or through Solvimon is always confidential in nature and contains trade secrets of Solvimon its suppliers or the producer of the Software.
23.3 If Customer detects an error or a data breach in the Services, Software or data carrier, Customer will report this to Solvimon and will not make this public before Solvimon and/or the supplier or the relevant third party supplier have been granted a reasonable period of time to repair the error or the breach ("responsible disclosure").
24. Force Majeure
24.1 Neither party is obliged to meet any of its obligations, including any statutory and/or agreed guarantee obligation, if it is prevented from doing so because of circumstances beyond its control (“niet toerekenbare tekortkoming”). Circumstances beyond Solvimon’s control are understood to include, in any event: (i) circumstances beyond the control of Solvimon’s suppliers, (ii) the failure by a supplier that Solvimon was instructed by Customer to engage to properly meet its obligations, (iii) defective condition of goods, hardware, software or materials of third parties that Customer instructed Solvimon to use, (iv) measures by authorities, (v) power failures, (vi) breakdown of the internet, data network or telecommunication facilities, (vii) (cyber) crime, (cyber) vandalism, war or terrorism and (viii) general transport problems.
24.2 If a force majeure situation lasts for more than sixty (60) days, either party has the right to terminate the agreement, in writing, for breach. In such event, all that has already been performed under the agreement must be paid for on a proportional basis, without anything else being due by either party to the other party.
25 Applicable Law
25.1 The Agreements between Solvimon and Customer are exclusively governed by Dutch law. Applicability of the Vienna Convention 1980 (The United Nations Convention on Contracts for the International Sale of Goods (CISG)) is excluded.
25.2 Any and all disputes arising from or in connection with any Agreement between Solvimon and a Customer and any other agreements that are the result thereof or related thereto, shall be resolved by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering). The foregoing is without prejudice to either party’s right to request preliminary relief in preliminary relief proceedings or arbitral preliminary relief proceedings and without prejudice to either party’s right to attach property before judgment.
26 Other provisions
26.1 Obligations which by their nature are intended to continue after the end of the Agreement shall continue to apply after the end of the Agreement. These provisions include those arising from the provisions on confidentiality, intellectual property rights, liability and applicable law.
26.2 Customer may only sell, transfer or pledge its rights and obligations under an Agreement to a third party with the prior written consent of Solvimon. Solvimon has the right to sell, transfer or pledge its claims for payment of fees to a third party. Solvimon is entitled at any time to transfer the Agreement to another company in which Solvimon holds the majority of the shares.
26.3 In the event that any clause or any part of any clause contained in these General Terms is declared invalid or unenforceable by the judgment or decree, whether consent or otherwise, of a court or body of competent jurisdiction from whose decision no appeal is or can be taken, all other clauses or parts of clauses contained in these General Terms shall remain in full force and effect and Parties will agree upon an alternative arrangement that is valid and which as closely as possible corresponds with the contents of the provisions to be replaced.